Tuesday, June 12, 2007

Equal Rights or Equal Entitlements?

Drugs are outlawed. Let's say I'm a Congressman who vocally supports greater and greater state powers against drugs, but I have used drugs in the past or am using now. Should I be exposed for my hypocrisy? By all means!

But let's say that we live in a world where pot is legal but still taboo, and I am a Congressman. Privately, I smoke pot. I also vote against any measure providing federal funds for pot smokers,. Yes, even low-income medical marijuana users.

An activist, frustrated by my "hypocrisy" on the pot issue, exposes my personal pot smoking habits. This would embarrass me, because I wouldn't want certain loved ones or my church-going constituents to know. But it would also anger me, because as a Congressman I don't vote for any law that interferes with other people's personal lives, and it is nobody's damn business what I do in my personal life.

The difference is between "negative" and "positive" rights. A negative right means no one should violate my freedom to do something - like take drugs. A positive right is the assertion that I deserve government subsidies for what I want to do. The common-sense and moral approach is to permit the activity but not subsidize it. This protects the freedom of individuals and the rights of taxpayers.

The issue of gay rights follows a finer line, however. Even though homosexual conduct is now legal, the State creates two classes of people: single people and married people. Heterosexual couples get to move from single status to married status, but homosexual couples can't. (Neither can threesomes, foursomes, etc. for that matter.) Thus, it could be said that gays are denied "equal rights," but are these negative rights or positive rights?

It appears to me that marriage is a voluntary act, and that marriage extracts obligations from the State and other third parties, such as health insurance and pension benefits for spouses. On balance, it seems like the advantage of getting married is greater entitlements.

But why should married people have more rights than single people? Why should the State provide positive rights to married people, and then compound the problem by expanding the criteria for who gets married?

I don't see how opposing state-sanctioned gay marriage is itself a denial of the real, negative rights of gays. As a simple means of protecting the taxpayers from additional subsidies, it seems more just to oppose gay marriage than support it. If we enjoyed Separation of Marriage and State, then people could create their own marriage contracts - gay or straight - as they see fit.

If a politician constantly demonizes gays and votes to prohibit homosexual activity yet is himself a closeted gay, he deserves to be outed. But if he opposes equal "rights" that really just entitlements, he is actually protecting the taxpayer and defending liberty. "Outing" a closeted gay just because he opposes the expansion of entitlements is not right.

So I say that Mike Rogers is justified in outing closeted Capitol Hill gays, if he understands what "equal rights" really are. If he doesn't, and views expanded entitlements as "rights," then shame on him.

2 comments:

I think your argument about same-sex marriage misses some important aspects of marriage. Suppose your were a member of a heterosexual couple, and your partner became ill, and you could not visit them in the hospital? Suppose they became gravely ill, and you could not make decisions about their treatment, but had to stand aside while other people did so? Suppose they died, and you could not conduct the memorial they would have wished, or attend when one was conducted, or inherit their wealth, or acquire custody of their children? All of those are things that marriage provides, as a legal institution. None of them is an "entitlement" against the general public; rather, they're rights that one member of a couple very probably would want the other to have.

Of course, it could be argued that these rights can be secured through other sorts of voluntary agreements, such as wills, trusts, and powers of attorney. But in the first place, some of the states that have passed anti-same-sex-marriage acts have explicitly prohibited any nonmarital relationship that grants rights comparable to those of married couples. And in the second place, marriage establishes all of the rights in question with a single transaction. Why should a same-sex couple not be able to engage in that single transaction, if they prefer simplicity?

Barnett's book on the Constitution argues that the use of "regulate" in that document means "to establish a regular legal form for doing something." Marriage is a classic example; one of the old slang expressions for getting married is "making it legal." If the state monopolizes the business of establishing legal forms, and if it sets up a form that is available to some couples but denies that form to other couples, this strikes me as discriminatory.

It should not be relevant, but I'll note that I am a heterosexual man in a long-term unmarried couple. I have no personal dog in this race.